For Whizzer's Seat, No Bench Warmer

ByJames H. AndrewsApril 26, 1993

JUDGING - to crib the old saw about war and generals - is too important to be left to judges. That's true, at least, of the kind of judging performed by the United States Supreme Court; and President Clinton should keep the maxim in mind when he nominates a successor to retiring Justice Byron White.

Justice White, a former football star, had no prior experience as a judge when President Kennedy named the deputy attorney general to the high court in 1962. Just as there was for many years a "Jewish seat" on the Supreme Court, and there almost certainly will be at least one "woman's seat" and a "black seat," maybe Whizzer White's seat should be reserved for non-judges.

(Chief Justice William Rehnquist also lacked judicial experience when President Nixon lifted him from the Justice Department to the high bench as an associate justice in 1972; but the chief justiceship can hardly be set aside to achieve diversity. Whether the "chief" is a judicial newcomer like Earl Warren or a jurist like Warren Burger should be left to happenstance.)

Many Court-watchers and constitutional scholars agree on the need for a wide range of experience and outlook on the high court. "The Supreme Court deals with public policy," not just law, says James F. Simon, author of "The Antagonists" (1989), a book about the intellectual clash between former Justices Hugo Black and Felix Frankfurter. When appointed to the high court in the 1930s, Mr. Black was a US senator from Alabama and Mr. Frankfurter was a Harvard law professor. They "brought very different persp ectives to judicial conferences," Mr. Simon says.

Because of the court's involvement in great national issues, says Prof. Gerald Gunther, a constitutional-law expert at Stanford Law School, "breadth of experience is very important on the Supreme Court, even more than on lower federal courts."

Of course, "breadth of experience" and diversity on the high court can be achieved in a host of ways. Racial, ethnic, gender, regional, political, and professional differences among justices prevent them from becoming too uniform in their outlooks. Still, there's something to be said for seasoning the mix of justices with people who have never been steeped, even for just a few years, in the culture of the bench.

Since the nation's beginning, in fact, only about half of the Supreme Court justices previously served on federal appeals courts or on high-level state courts. Some of the greatest justices came to their duties without any senior-court experience: Besides Chief Justice Warren and Justices Black and Frankfurter, these include John Marshall, Joseph Story, Charles Evans Hughes, Louis Brandeis, and Harlan Fiske Stone. More recently, the highly respected Lewis Powell joined the court without judicial experien ce.

Since Justices Powell and Rehnquist took their seats in 1972, however, the eight people nominated to the Supreme Court (excluding Rehnquist's elevation to the chief justiceship in 1986) all served as federal appellate judges or, in the case of Sandra Day O'Connor, as a state appellate judge.

In a 1957 speech, Frankfurter took issue with what he saw as a growing sentiment in the Eisenhower administration for restricting Supreme Court nominations to experienced judges. (President Eisenhower was angry at having been "burned" in his appointment of Warren. Not that the new policy helped Ike, though: He later appointed William Brennan, a member of the New Jersey Supreme Court, who turned out to be one of the great "liberal" justices.) After tracing the history of appointments to the high bench, Fr ankfurter said: "One is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero." Far more important, he said, is "distinction in the realm of the mind and the spirit...."

Clinton will have little difficulty finding a man or woman who has the broad intellect and deep heart he says he's looking for in a nominee, and one who - as is the president's prerogative - shares his fundamental views on national issues. "There are easily 100 - even 500 - people in the US who could be fantastic Supreme Court justices for Clinton," says Prof. Rod Smolla, a constitutional scholar at William &amp; Mary law school.

That being so, Mr. President, why not revitalize the long and successful tradition of naming to the Supreme Court distinguished Americans who never warmed the bench?